Editor’s note: Braden Cox is technology counsel for the Competitive Enterprise Institute.

WASHINGTON,The prophecies of Antitrust have spoken. The Department of Justice filed a lawsuit in February to block the proposed merger of enterprise application software makers Oracle and PeopleSoft.

This action is at odds with the realities of the market for enterprise application software. Unfortunately, antitrust regulators, as mere mortals, cannot predict the future…so their judgments often create more harm than good, especially when applied to dynamic industries.

Antitrust law attempts to predict the effect of a merger upon future economic performance. Such a prediction requires a vision of how specific markets work, now and in the future. Fast-paced industries are complicating the basic inquiry of merger analysis: are consumers better off as a result of the merger or, on balance, are they harmed?

Divine information

The mantra of the digital economy is that “information wants to be free.” Rapidly changing technologies and industry structures make it easy for data to escape economic forecasts based on artificial, static models. Antitrust authorities compensate for their lack of information by creating an economic “Polaroid moment” — a low-tech snapshot of the market using theoretical assumptions like “perfect information” or “zero transaction costs.”

Businesses do the same type of forecasting for sure. Mergers are like marriages — entered into with the belief they will yield positive benefits. Sometimes both end up in messy divorces — but, generally the parties involved are best able to decide their fate. And antitrust review is an institutional arrangement that provides the incentive for all of a firm’s competitors to lobby regulators against a proposed merger. Too often antitrust action has occurred to protect competitors from competing — straying from the law’s stated purpose to ensure consumer welfare. We have seen PeopleSoft attempt to influence the full gamut of decision makers — DOJ, state attorneys general, and consumers.

Market intervention

Businesses are also opportunistic in their motivations to merge. Mergers can create a unified firm that provides some form of advantage over the competition or their customers. But this is where dynamic and innovative industries thrive. Any advantage possessed by the merged entity is fleeting, as firms already in the market adapt and new firms enter to compete. Firms know that it is not sensible to raise prices and attract competitors who would otherwise be passive.

Innovation that derives from the response of customers and competitors to the merged entity is rarely considered by antitrust authorities. Because it involves many parties and even those that are potential market participants, this “market innovation” is harder for an economist to value than the innovation or efficiencies coming from the merged firm itself. But market innovation is the key to understanding a merger’s effects on competition and consumers in the digital economy.

Imprecise antitrust dogma

Robert Bork’s “The Antitrust Paradox” and Richard Posner’s “Antitrust Law” have helped explain that the real dangers of mergers are almost always overstated. Efficiency gains benefit consumers, and often a merged entity can better serve consumers. This law and economics analysis has positively influenced the intellectual tools of current antitrust action. Still, antitrust authorities assume that they can accurately predict the future, despite the disclaimer in the merger guidelines of the DOJ and FTC that “information is often incomplete and–historical evidence may provide an incomplete answer to the forward-looking inquiry of the Guidelines.” Merger prognostication often speaks in such uncertain terms — leaving it up to lengthy and expensive judicial proceedings to resolve antitrust issues. A merger delayed is often consumer welfare denied.

Efficiency and innovation are the hallmarks of the high tech world, yet antitrust law does a poor job at valuing these significant life-enhancing characteristics. At a recent merger workshop jointly held by the FTC and DOJ, many participants questioned how to consider a merger’s positive efficiency and innovation gains. Until we receive a good answer from the regulators, there is no antitrust oracle that can prophesy merger effects in a dynamic digital economy.

CEI: www.cei.org